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FTC Speaks to Timing of Consent Orders

by   |   September 16, 2018

The FTC recently spoke about the time it takes review a consent package after FTC staff and the parties formally submit a settlement package to the Director of the Bureau of Competition.

According to the FTC it typically takes four weeks to review a consent package after staff and the parties formally submit the settlement package to the Director of the Bureau of Competition. The Director of the Bureau of Competition then will take two weeks to review the consent package. Once the Director agrees that the proposed settlement addresses the competitive risk raised by the merger, the Director will make a recommendation to the Commission that the Commission accept the proposed consent order for public comment. The Bureau of Economics will separately make its own recommendation. The Commission will typically take two weeks to review the Bureau Directors’ recommendations before voting on whether to accept the consent. The Commission’s time to review and to vote is solely in the Commission’s discretion and the Commissioners’ review may exceed two weeks when necessary.

The FTC notes the foregoing timelines for Bureau’s and Commission review may be shortened or lengthened—in the discretion of the Bureau Directors in the first period, or the Commission in the second period— and suggests counsel should not make commitments that the review period will be shorter.

The FTC also notes if parties believe that expedited review of a consent package is appropriate in their particular matter, they must submit a letter requesting expedited review and explaining why expedited review is requested. According to the FTC, before seeking expedited review, parties should have notified Bureau of Competition staff as early as possible during the investigation of the issues cited in the letter justifying expedited review. The FTC believes expedited review is unlikely to be granted when the parties had the power to address these issues themselves, or it was reasonably foreseeable that there would be timing issues (e.g., the parties negotiated a drop-dead date that allowed only four months to close, or agreed to a ticking fee on financing that failed to anticipate antitrust review). According to the FTC routine business exigencies related to deal closing are unlikely to constitute sufficient grounds for expedited review. Finally, the FTC states frequent outreach to the Bureau of Competition Front Office or to Commissioners’ offices is unlikely to expedite a decision further once a letter is received.